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Estate claims in court, hows and whys

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It is always better to avoid estate claims getting to court, but sometimes it is unavoidable.

All litigation is stressful, and estate claims are especially stressful.  It is always better for family members to negotiate an outcome rather than have a court make a decision for them.

However, court action is sometimes unavoidable.

To learn more about the basics of a claim, click here.  To find out who can claim, click here.

A claim for increased provision from an estate is commenced by filing an Originating Summons at the Central Office of the Supreme Court.  This must be done within six months of the day when probate is granted.

The application will name the applicant as plaintiff and the executor as a defendant.  The beneficiaries named in the will are also usually named as defendants.

The applicant makes an affidavit that sets out why they need greater provision out of the estate of the deceased.  The applicant must make a full and frank disclosure of their finances and personal circumstances.

The defendants each file a formal “appearance” document in the Court.

The first Court appointment will usually be a “Status Conference”.  The Court will make orders for the progress of the claim.  All parties must attend in person unless they have been excused.

Mediation – negotiating a fair outcome

The parties will usually be ordered to a mediation conference at a fairly early stage.  In a mediation, the parties meet with a Registrar or Judge of the Court who will attempt to help them settle the claim.

Whatever is said in mediation is confidential and cannot be revealed to anyone outside the mediation – to do so may be a contempt of court.

Parties must properly participate in the mediation.  The process works best if the parties approach it with an open mind.

Many claims are settled at the mediation stage.  However, if mediation is unsuccessful, then a trial is needed.

For more information on mediations, you can download the Court’s explanatory booklet here.

Going to trial

A trial will be before a Master or Judge of the Court.  Each party will give evidence and a decision is made.

Costs may be awarded against a party if they are unsuccessful, or they may be ordered to be paid out of the estate.

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About

Peter Nevin     pnevin@taylorsmart.com.au
Peter Nevin is a Partner in our Commercial Litigation practice group. He specialises in commercial and general litigation, and provides detailed advice on industrial relations issues to both employers and employees. He also provides advice and representation in estate disputes on behalf of executors, beneficiaries and third party claimants.

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